Revisiting the Free Speech Debates in the First Amendment to the Indian Constitution

SIDDHARTH NARRAIN takes a closer look at the historical circumstances that led to changes to Article 19(2) in the First Amendment of the Indian Constitution.

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THE Constitution (First Amendment Act), 1951 remains one of the most deeply contested changes to the Indian Constitution. The First Amendment was debated over 16 days[1] and brought about barely 16 months after the Indian Constitution was adopted.

The amendment was unique in that it was made by the Provisional Parliament, members of who had just finished drafting the Constitution as part of the Constitutional Assembly.

As part of the transition to Indian independence, the Constituent Assembly had also functioned as the Dominion Parliament. Once the Constitution was adopted in 1950, the Constituent Assembly was dissolved, and the Dominion Parliament, with the same members, was renamed the Provisional Parliament.

The First Amendment to the Indian Constitution was made by the Interim Government dominated by Congress Party members and led by the Interim Prime Minister Jawaharlal Nehru. Since these amendments took place less than a year before the first Parliamentary elections, there were no formal Opposition parties involved in the debate.

Public order, incitement to an offence and friendly relations with a foreign State

Of the changes that were made, the most controversial were those pertaining to the limitations on the freedom of speech and expression guaranteed under the Indian Constitution.[2] These changes were guaranteed under Art. 19(1)(a) subject to a list of restrictions provided in Art. 19(2).[3]

The changes to Art. 19(2) that were proposed by the Interim Government led by the acting Prime Minister Jawaharlal Nehru added limitations to the freedom of speech and expression based on 'public order', 'incitement to an offence' and 'friendly relations with a foreign State'. These changes have been variously criticised for narrowing individual liberties and laying the ground for arbitrary State action restricting free speech in contemporary India[4], defended as being responsive to the  political context of the time.[5]

The immediate reason for the amendments were a series of Supreme Court and High Court judgments that had struck down provisions of public safety laws, press related laws and criminal provisions that were deemed to be incompatible with the constitutional right to freedom of speech.

The members who opposed the Bill were members representing various political hues – socialists, Hindu right wing, and representatives of minority groups.

Members of the Provisional Parliament from across the political spectrum were especially concerned that the amendments would reinstate the controversial s. 124A (sedition) and s. 153A (promoting enmity between groups) of the Indian Penal Code, that were used by British colonial authorities to try Indian nationalists with sedition and would revive the model of public safety laws that the British used effectively to control dissent during colonial rule.[6]

Those opposing the amendments were also deeply concerned that introducing the public order exception to free speech would grant wide and arbitrary powers to the executive that could be used to stifle all political opposition.[7]

Members of the interim Congress government portrayed crowds as a threat to the stability and viability of the post-independent Indian state and the instability of the political situation both in India and globally.

Nehru tied the changes that were being made, especially the one related to public order, as a response to the Partition related communal violence, and the Communist Party of India supported left wing armed peasant insurrection in Telangana.

This was not the first time that these references were made. In the Parliamentary Debate on the free speech related aspects of the First Amendment, the then Interim Prime Minister Nehru, stressed on both the armed peasant Telangana insurrection supported by the Communist Party of India[8], and Partition related violence[9] as justifications for the executive to be given explicit and wider police powers to limit speech.

For those opposing the amendments, the Partition-riots and armed insurrection in Telangana were not representative of the situation in India as a whole. S. P. Mookerjee who had been affiliated to the Hindu Mahasabha and was a prominent critic of Partition argued that crowds represented a legitimate democratic impulse and that Telangana and Partition related riots in Calcutta were exceptions rather than the norm.

Mookerjee argued these situations, could have been dealt with by the government through its existing Emergency powers and powers of preventive detention and did not need a restriction of the free speech clause that was framed so broadly.

Food riots and public order

Mookerjee and others opposing the First Amendment in the Provisional Parliament repeatedly focused on the Cooch-Behar food riots[10] and deaths by police firing in relation to a compulsory food levy  Rajasthan.[11]

They also pointed to reports of a police lathi charge on weavers demanding yarn in the Saidapet area of Madras.[12]

In their interventions in the parliamentary debates on the First Amendment, those opposing the amendment linked these riots to being a consequence of policies of the Interim government that had led to, or were inadequate in tackling shortages in food, clothing, and housing that the country faced at the time.

In Cooch-Behar, the police had fired on a crowd that has rioted as a result of a crisis of acute food shortage. These food riots were a legacy of acute shortage of food in the 1940s post the Bengal Famine and the colonial British polices of the Second World War.[13] The Interim government, faced stiff opposition to continuing existing policies on the rationing and control of food.[14]

Food riots broke out on the eve of Indian independence food policy.[15]  A Committee set up to examine this issue, and which was dominated by Indian industrialists, recommended that food grain controls be removed and that the free market would solve the problem.[16]

Gandhi supported this measure arguing that India's food shortage problem would be solved with the removal of government controls.[17]

The Interim Government's decision to remove rationing and control schemes despite a poor harvest and a massive deficit of food grains led to massive labour unrest and prices soaring by 250 per cent. The government was forced to reverse its decision after what was described as one of the most disastrous and costly experiments in Independent India's short history.[18]

Popular unrest and the question of institutional legitimacy

This aspect of the context of the First Amendment Debates has been missing in the existing literature on the First Amendment. Understanding the socio-economic aspects and compulsions of the unrest in the country at the time of independence will add to our understanding of this particular historical moment.

While the compulsions and ideological leanings of the newly independent Indian state may have been very different, there are still important lessons to be learnt from the questions and contestations that arose around this issue at the time. The question of popular unrest expressed through protests at this time is linked to the question of institutional legitimacy that was discussed during the debate on the First Amendment.

One of the arguments that members opposing the speech-related changes in the First Amendment made was that the Interim Government should have waited until the first election before amending the Constitution.

Those opposing the First Amendment questioned the moral and legal legitimacy of an amendments by a non-elected body so soon after the Constitution was discussed and framed.[19] Nehru responded to this arguing that the Provisional Parliament had a moral legitimacy to amend the Constitution since the membership of the Constituent Assembly and the Provisional Parliament was the same.[20]

Nehru also argued that Parliament represented the will of the people, and that the actions that the Interim Government was taking was on behalf of future generations of Indians.[21] While Nehru framed the argument for the speech-related changes in the First Amendment as one of trusting the Parliament as a legitimate voice of the people, members opposing these changes, reframed the question of the Interim Government not trusting the wisdom of the people to navigate existing political conditions.[22]

Those opposing the free speech related changes to the First Amendment asked the Interim Government to reflect on their fear "of people running amuck", and to address the reasons for popular unrest, rather than respond with coercion.[23]

The First Amendment debates, although conducted in a very different political context, remain relevant today, as democracy in India navigates choppy waters. Death in judicial custody of Stan Swamy, and the recent revelations around the misuse of the Pegasus surveillance spyware against Opposition leaders, lawyers, and human rights defenders, highlights why institutional safeguards for freedom of speech must be protected and strengthened.

Revisiting the First Amendment debates, 74 years after independence, could be one step in this direction.

(Siddharth Narrain is a PhD Candidate, Faculty of Law and Justice, University of New South Wales (UNSW), Sydney. Views expressed are personal.)

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